Obtaining digital evidence in the global world

Abstract

Gathering evidence in criminal proceedings is becoming more complicated each day. Cases are no longer merely national in nature. Nowadays most of the cases require obtaining evidence from global Internet service providers. This means that evidence from a crime may be found anywhere. The Budapest Convention addresses this issue, in Article 32, allowing the competent authorities of a State Party to seek data in another’s Party territory, in limited circumstances. The Portuguese law goes beyond those limited cases, allowing Portuguese authorities to extend searches beyond the physical and political borders of Portugal, no matter where the data may physically be stored. The drafting process of a Second Additional Protocol to the Budapest Convention is currently ongoing. It is expected that this exercise will allow State Parties to the Budapest Convention to seek an agreement on a number of issues regarding obtaining evidence from the cloud, such as loss of location, or transborder searches, or direct cooperation with providers in other jurisdictions, amongst others.